FRANK BRENNAN. Why Turnbull has no option other than a plebiscite on Same Sex Marriage


In The Australian Paul Kelly writing on the same sex marriage plebiscite said (23/8), ‘Lawyer and priest Frank Brennan, who has always argued the issue should properly be decided by parliament, told this column: “Contrary to Justice Kirby I have urged proponents of same-sex marriage to support legislation for a plebiscite because there is no other way that the matter can be resolved during the life of this parliament with Malcolm Turnbull remaining as Prime Minister.”’ Let me explain.

I have always thought a plebiscite was a bad idea. There will be complexities in legislation which can only be determined by parliament. A plebiscite is not the usual Australian way for determining law or social policy. Once Abbott was no longer prime minister, I pointed out to groups such as the Australian Christian Lobby that it made little sense for them to be committed to a plebiscite when the PM, the Leader of the Opposition and the Greens all held a contrary position.

I always urged a conscience vote in the parliament as the best means of resolving this issue.

Once the ALP conference tinkered with the conscience vote provision, I knew it would open the gate to tinkering on the other side. It definitely reduced the compelling nature of the argument that the matter be resolved by conscience vote of the parliament.

Once Turnbull went to the election with a commitment not to legislate for same sex marriage except after the conduct of a successful plebiscite, it was inevitable that the ONLY way forward to resolving the issue during the life of this parliament would be by the parliament enacting legislation to authorise a plebiscite. In the absence of such authorising legislation, Turnbull has nowhere to go. So either he goes, or the matter gets put on hold until after the next election.

A conscience vote in the parliament during the life of this parliament, and without a plebiscite, would leave the opponents of same sex marriage rightly feeling that the government had breached an election commitment. This anxiety on their part would then build on their sense that the cultural elites are cutting corners to achieve their objective. There were unfortunate exchanges in the High Court case involving the ACT’s attempt to legislate for same sex marriage when Justice Hayne made it very clear from the bench that the High Court was anxious to expand the constitutional definition of marriage to include same sex marriage even though there was no intervener to argue the contrary position. The Commonwealth was arguing that the case could be decided without the court having to rule on whether ‘marriage’ in the Constitution could include same sex marriage.

The Commonwealth Solicitor General had argued:

‘First of all, we have put something as the better view. The ACT commends that view. The intervener enthusiastically commends that view. The Court does not have a contradictor on that question. The Court would not decide any matter merely on agreement. That is just not on, absolutely not on. If the matter needs to be decided, the Court will decide it and what I had proposed to do, given there was not a contradictor, was to identify what I will call the narrow argument and then deal with what I will call the broader argument.

‘So I will seek to identify both those arguments, there being no contradictor. But I do not retreat from the proposition that because our law on any view has stayed on the right side of the relevant part of the circumference of the circle, it is either at the circumference or it is inside it. In that sense, it is not necessary to decide the constitutional question.’

This exchange took place:

‘CRENNAN J: So that that category of trademarks has been widened in ways that once would have seemed unimaginable.

‘MR GLEESON: Certainly, that is so and that is consistent with established constitutional interpretation. It is an example of that form of development that can occur. I am simply identifying that there will be some outer limits which probably do not need to be resolved in this case whereby the power may not enable the Parliament to declare something to be a marriage which bears no recognisable resemblance to marriage which can be sourced in the common law, in statutory law or in any other materials that the Court can properly look at.

‘So it would raise a question whether in international developments, for instance, in the ICCPR where there are various rights accorded and where I currently understand it there is no absolute clarity on the answer to these questions, if international developments move to a position where marriage was recognised in the ICCPR as a broader set of unions that may, may be a material which might inform this question of the outer boundary of the constraint but the present case we are dealing with is, in a sense, one of the easier ones for saying was at least that much of Hyde v Hyde frozen.

‘HAYNE J: But the relevant social institution that is lying in behind is the social institution of personal unions. Now, the social institution called “marriage” – I would be surprised if there was debate about this, there may be, but has never, I think, been regarded as frozen. The social institution of marriage, if you look back pre, post, during Federation has changed.

‘MR GLEESON: Certainly changed in our – in the early part of our submissions we have said if you open the frame a bit further, it has changed even more over time through roman law notions.

‘HAYNE J: But once you say that 51(xxi) is not using the word “marriage” in the sense, “marriage” as defined in Hyde v Hyde, what are you left with except marriage as legally recognised and it would have other elements, social institution marked by personal union.’

The discussion later culminated in Justice Hayne saying to the Solicitor General: ‘If you sit on the fence too long, Mr Solicitor, it becomes deeply uncomfortable.’ (see We had reached the stage that the bench thought the Solicitor General was fence sitting simply because he was arguing that a constitutional question could remain unanswered when the case at hand could be resolved without the question being answered, especially given that there was no contradictor at the bar table.

My point is simply this. We need to follow due process in determining this policy question. Opponents of same sex marriage (of which I am not one) are starting to realise that the High Court reached a decision on the matter without their having a place at the Bar table. Those opponents engaged in an election campaign in which government at their urging pledged not to legislate without first conducting a plebiscite. In principle I thought a commitment to a plebiscite was foolish; in principle, once an election commitment is given, I think a plebiscite must be conducted during the life of this parliament prior to legislation for same sex marriage then being debated in the parliament. The most Turnbull can now offer those supporters of same sex marriage who are at the same time opposed to a plebiscite is a promise to go the next election committed to a conscience vote in the next parliament without a prior plebiscite. If Turnbull were to attempt anything else during the life of this parliament, he would face the chopper, and so he should.

Fr Frank Brennan SJ is professor of law at Australian Catholic University


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8 Responses to FRANK BRENNAN. Why Turnbull has no option other than a plebiscite on Same Sex Marriage

  1. John Challis says:

    A further comment:
    Frank Brennan, thank you for alerting me to Justice Haynes definition of marriage as “the social institution of personal unions, now the social institution called ‘marriage’ – …… this has never I think been regarded as frozen. The social institution of marriage, if you look back pre,post,during Federation has changed”.
    This is the crux of the debate -the conservative Aristotelians are stuck with a fixed,essentialist concept of marriage, based on natural law theory supported by biblical revelation, versus an existentialist concept of marriage as a fluid social contract developing to meet the changed conditions of society. For example, no fault divorce, which has done more to change marriage and family life than same=sex marriage will ever do.
    Can you briefly explain what ICCPR is and what Hyde v Hyde being “frozen” means , and what was “unfortunate” about Justice Haynes
    description of marriage, which seems to be to be exactly what needs
    to be widely understood.
    I look forward to hearing from you,
    John Challis.

  2. Lynne Newington says:

    The heating up of the plebicite debate, the fallout targeting the children and the church’s concern there-in, one has to wonder why Brennan in particular is pushing so hard for it now church officials have backed off.
    In fact on that basis, they ought to butt out of it altogether considering those same needs and rights ordained for children of SSM couples there is so much hue and cry about, are denied the offspring of hetrosexual clergy many having been forced to live a life of subterfuge if not having their rights signed away with confidentiality clauses and threats hanging over their mothers heads if daring to raise them.

  3. John Challis says:

    Ominous headlines and article in Tuesday’s “Daily Telegraph” :
    ‘THOU SHALT NOT PASS” -CHURCHES FORM HOLY ALLIANCE TO FIGHT GAY MARRIAGE” – “Catholic,Anglican,Maronite,Orthodox,Baptists,Pentecostal Assemblies of God and other Christian denominations have signed, as have prominent family and ethnic associations ….with likely representatives of major faiths, including Islam and Judaism”.
    The only way the plebiscite will be won against such organised opposition is for the PM and Leader of the Opposition to jointly campaign across the country, as happened in Ireland. Is this likely to happen ???

    I am 88, my partner of 49 years is 84; we are prepared to wait until a vote in Parliament after the next election , rather than set a bad
    precedent for future social reforms, all of which will be referred to and probably blocked in plebiscites.

    If Labour decides to support the plebiscite legislation it could amend it to include a plebiscite on Cory Bernardi’s motion to amend section 18c of the Discrimination Act – that would liven things up !!!

  4. Vishv Malhotra says:

    In Australia, we elect parliaments to make laws as needed. Mr Turnbull has reneged that responsibility and entering into an expensive exercise of opinion gathering. The plebiscite is just a big name for a small outcome. This should not be allowed.

    If he claims that this opinion gathering is important he should have courage to do the same on issue of different gender marriage too. And, be ready for MarriageExit outcome.

  5. Frank Brennan says:

    Peter, what’s indisputable is (1) that the government within its own ranks signed off on a Coalition agreement before the election making a plebiscite mandatory and (2) the government went to the election committing itself to a plebiscite and (3) the government was re-elected with that ‘mandate’ and (4) that Turnbull is a dead duck if he attempts to preside over a government which participates in a vote in the House of Representatives in favour of same sex marriage without first having a plebiscite. If that’s Turnbull-centric I plead guilty. I’m just trying to highlight that a vote on same sex marriage without a plebiscite is not possible during the life of this parliament with the Coalition maintaining government and being headed by Turnbull.

    • Peter Johnstone says:

      Frank, I’d argue that marriage equality without a plebiscite is certainly possible if Turnbull finds the wit and the courage, but agree unlikely. My own view is that I’d prefer not to risk the damage of a plebiscite and see what happens.

  6. Peter Johnstone says:

    I should have added to my earlier post the observation that this damaging plebiscite is not even conclusive as it will not bind the Parliament; the decision will still be a matter for the Parliament. So what’s the point?

  7. Peter Johnstone says:

    Frank, it seems to me that your argument is a Turnbull-centric argument. He’s got himself into this mess by making a weak commitment to stick with Abbott’s manipulative delaying tactic of a plebiscite to placate the ultra-conservatives, knowing that such a course would exacerbate the injustice and hurt felt by gays. A plebiscite is not a referendum, merely a device to gauge the opinion of the people. That opinion supporting the justice of marriage equality is already clear from the opinion polls which have become even more supportive since the election, which has also returned a majority of parliamentarians in favour of marriage equality. Chances are that Turnbull would have been returned with a greater majority if he had dumped the plebiscite. You may well be right that Turnbull in his own interests has no option other than a plebiscite but that doesn’t make it just. This is a matter of justice clearly recognised by the Australian people. Let the Parliament vote. I’m not so concerned about Turnbull’s future but such a step could actually strengthen his position by a show of courageous decisiveness.

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